Content:
• Law No. 172/2020
• Decision No. 719/2020
Law No. 172/2020
Law no. 172/2020 published in the Official Gazette Part I no. 736 of August 13, 2020, amending and supplementing Law no. 16/2017 on the posting of workers within the framework of the provision of transnational services, brings the following clarifications:
Comment: This law brings a series of amendments and supplements regarding the posting of workers within the framework of the provision of transnational services, of which we mention the following:
- Redefinition of certain terms (specific allowance for transnational secondment, employee posted from Romania, user enterprise, etc.).
- The concept of remuneration applicable on the territory of Romania is introduced as the amount of money that includes the minimum wage as defined by law, the payment due for overtime, work on weekly rest days, work on legal holidays, work at night, other allowances and bonuses which are mandatory under the national legislation in force, as well as those provided for in the collective employment contracts.
- The concept of remuneration applicable on the territory of a Member State of the European Union, other than Romania or on the territory of the Swiss Confederation, is introduced as the amount of money established by national law and/or national practices of the Member State where the worker is posted, representing all aspects concerning the remuneration that are mandatory under the national law, the laws, regulations and administrative provisions or collective agreements or arbitration awards, deemed to be generally applicable or are applicable in accordance with Directive 96/71/EC in the target Member State.
- References are introduced regarding the situation of employees made available by a temporary work agency. Thus, when the temporary work agency makes available an employee to a user enterprise that is incorporated in or carries out its activity in Romania, and between the agency and the employee there is an employment relationship during the secondment period, if the employee must carry out the activity in another Member State, other than Romania, in the context of the transnational provision of services by the user enterprise, the employee is considered to be seconded to the territory of that Member State by the temporary work agency that has an employment relationship with the employee. In this case, the user enterprise that is incorporated in or carries out its activity in Romania is obliged to notify the temporary work agency, at least 30 days before the start of the activity on the territory of the respective state.
- If the temporary work agency makes available an employee to a user enterprise that is incorporated in or carries out its activity on the territory of a Member State other than Romania, or on the territory of the Swiss Confederation, and between the agency and the employee there is an employment relationship during the secondment period, if the employee made available to a user enterprise by a temporary work agency located in Romania, must carry out the activity in a Member State other than the usual working place of the user enterprise, in the context of the transnational provision of services by the user enterprise, the employee is considered to be seconded to the territory of that Member State by the temporary work agency that has an employment relationship with the employee. The agency is required to notify the employee about the change of the place of work.
- The secondment may be extended up to 18 months if the enterprise sends a justified notification to the territorial labour inspectorate or, as the case may be, to the competent authority of the Member State where the posted employees carry out their activity.
Decision No. 719/2020
Decision no. 719/2020 published in the Official Gazette in Part I no. 794 of 31.08.2020 for the approval of the reimbursement procedure and payment of the amounts granted under Government Emergency Ordinance no. 132/2020 regarding support measures for employees and employers in the context of the SARS-CoV-2 pandemic, as well as for stimulating employment growth, brings the following clarifications:
Comment: This decision establishes:
- The allowance provided for in Article 1 paragraph 4 of GEO no. 132/2020 (respectively the one related to the reduction of the employees’ working time by a maximum of 50% of the duration provided in the individual employment contracts – 75% of the difference between the gross basic salary provided for in the individual employment contract and the gross basic salary for the hours actually worked as a result of the reduction in working time, in addition to the due salary entitlements, calculated for the actual time worked) shall be covered by the unemployment insurance budget at the request of the employers. The request shall be accompanied by an affidavit showing the fulfilment of the conditions of art. 1 para. (2), (3) and (11) of the emergency ordinance and by the list of persons for whom the settlement is requested, signed by the legal representative of the employer. The request and supporting documents shall be submitted in electronic or paper format to the county or Bucharest employment agencies, where the employers have their registered office. The allowance shall be settled for the month preceding the month when the request is submitted. Settlement from the unemployment insurance budget of the allowance shall be made within 10 days from the date of the request and after the payment of the related taxes and contributions. The templates of the request and supporting documents are approved by order of the Minister of Labour and Social Protection, within 10 days from the entry into force of this Decision.
- The settlement of the amounts stipulated in art. 4 paragraph (1) of Emergency Ordinance no. 132/2020 (i.e. an amount representing 35% of the remuneration due for a working day granted from the state budget for persons who carry out unskilled activities on an occasional basis – day labourers – in areas affected by the interruption or restriction of activity due to the SARS-COV-2 coronavirus, for a period of three months, paid at the date chosen by the beneficiary, but no later than December 31, 2020) shall be covered by the Agencies for Payments and Social Inspection, at the request of the beneficiary. The request for reimbursement, together with the list of the day labourers concerned, shall be submitted by the beneficiaries, for the previous month, to the agencies for payments and social inspection where they are headquartered or where they carry out their activity. The list of the day labourers concerned is verified by the agencies for payments and social inspection where the beneficiaries are headquartered or where they carry out their activity, based on the name and personal identification number (CNP), with the support of the territorial labor inspectorates. The templates of the request and the list of day labourers are approved by order of the Minister of Labour and Social Protection, within 10 days from the entry into force of this Decision.
- The amounts stipulated in art. 5 par. (1) of GEO no. 132/2020 (i.e. the settlement of a part of the salary paid, borne from the unemployment insurance budget, representing 41.5% of the salary for the days worked, for a working schedule of 8 hours/day, but not more than 41.5% of the average gross earnings provided for under the Law for the social insurance budget for 2020, for employees with individual employment contracts for a fixed period of up to three months), are settled by the National Agency for Employment through the employment agencies, at the request of the employers. The request shall be accompanied by an affidavit showing the fulfilment of the conditions of art. 5 para. (1) of GEO 132/2020, accompanied by the list of persons for whom the settlement is requested, signed by the legal representative of the employer. The documents are submitted to the employment agencies, in electronic or paper format, in the current month for the previous month, after the payment of related taxes and contributions. The templates of the request and supporting documents are approved by order of the Minister of Labour and Social Protection, within 10 days from the entry into force of this Decision.